In other words, the power of demand is sometimes perceived as beneficial to consumers and is not always scrutinized by competition authorities. They usually apply a “rule of reason” in which the pros and cons of demand power are weighed against them. In a landmark decision in the United States, the Supreme Court stated that a buying group was:[12] For example, workers on fixed-term contracts often have lower bargaining power than permanent employees because they are not unionized or are part of collective agreements. A 2015 European Commission study showed that the same person who hides the same work earns on average 15% more on a long-term contract than a fixed-term contract. [17] Similarly, contractors have less job security and are generally paid less than in-house workers. [18] Given the unusually high fluctuations in the labour market in China, many companies face considerable pressure to enter into a no-poaching agreement, given the high cost of hiring, recruiting and training new talent. So it seems that it is only a matter of time before China`s competition authorities focus on non-poaching deals and take enforcement action. One might therefore ask whether any real harm results from non-poaching agreements. In the event that it has agreed that a “direct request” agreement is not prohibited if it is “reasonably necessary for mergers or acquisitions, whether completed or not, of investments or disposals, including the associated due diligence”. See United States v. Adobe Sys., Inc., No. 1:10-cv-01629-RBW (D.D.C.

Mar. 18, 2011), ECF No. 17. Agreements between companies not to hire workers from each other have recently been put on the radar of competition authorities, particularly in the United States. However, the question arises as to whether labour markets fall within the competence of the competition authorities and whether it is for them to intervene. If so, how can the instruments developed in the competition economy help in such cases? [iii] [13] However, non-poaching agreements often apply to professionals whose contract duration already exceeds minimum labour law standards. However, little has been written about the limits of agreements between competitors or potential competitors when it comes to these talents. Some agreements are obviously clearly “naked”, in themselves illegal. These are agreements that are not reasonably necessary to support a separate and legitimate commercial transaction or cooperation, and they would eliminate competition in the same way as price-fixing or customer award agreements.

However, in the case of agreements that could be something other than a naked agreement aimed at eliminating competition, it is not always easy to determine the boundary between what is permitted and inadmissible by the “rule of reason”, a construction of antitrust law in which a factual would weigh any harm to competition against possible legitimate justifications. Prohibitions on debauchery and prohibitions on competition are subject to complex rules. As a result, many companies seek legal assistance in the development of restrictive employment clauses. .

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